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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Irving [1871] ScotLR 8_368_1 (22 February 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0368_1.html
Cite as: [1871] SLR 8_368_1, [1871] ScotLR 8_368_1
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SCOTTISH_SLR_Court_of_Session
Page: 368↓
Court of Session Inner House Second Division.
Facts:
Under the terms of a deed of entail held that after one heir of entail had burdened his estate with a bond of provision for a sum equal to three years' rents
Page: 369↓
of the estate, a subsequent heir of entail was entitled to grant a similar bond.
This is a Special Case submitted for the opinion and judgment of the Court by Mrs Margaretta Emilia Irving, widow of the Rev. Charles Irving, rector of Donoughmore, in county Donegal, Ireland, and Robert Nasmyth Irving, proprietor of the estate of Bonshaw, in Dumfriesshire. The question between the parties is as to the validity and amount of a bond of provision in favour of Mrs Irving, executed by her father, the Rev. John Irving, in 1839, while an heir of entail in possession of the estate of Bonshaw, and arises in the following circumstances:—The estate of Bonshaw was originally entailed by William Irving in 1775, by a deed of strict entail, which, however, contained the following reservation:—“And also reserving power to the said heirs of taillie to provide their children, besides the heir, in reasonable provisions, not exceeding three years' free rent of the estate, so far as the same shall be unaffected at the granter's death, and after deduction of the yearly interest of former debts and provisions.” The entailer was succeeded by his son, John Robert Irving, who, in exercise of this power in the entail, granted, in 1837, a bond of provision in favour of his two daughters of £2945, or three years' tree rent of the estate. That bond is still unpaid. John Robert Irving was succeeded in the entailed estate by the Rev. John Irving, Mrs Irving's father, who also, in exercise of the power in the entail, burdened the lands with a provision in favour of his daughter of £3000, or three years' free rent. In 1853 an arrangement was entered into by the Rev. John Irving and the succeeding heirs of entail, whereby the estate was disentailed, and a disposition granted of the estate in liferent to the Rev. John Irving, with a further destination under which the second party to this case became the fiar of the estate. By the disposition, the two bonds of provision above referred to were made real and preferable burdens on the lands “in so far as the said provisions do or may affect the said estate.” A sum of money, amounting to £10,000, was agreed to be raised on the security of the estate when disentailed; and that and other sums to be paid by Mr Irving, although made real burdens, were postponed to the provisions above-mentioned. Mr Irving survived till 1870. In 1865 he had sold a part of the estate to the Solway Junction Railway Company for £1800; but at the period of his death that sum had not been uplifted, and brought interest at 5 per cent., or £90 per annum. Certain rent charges affect the estate, which were imposed under the provisions of the Act 9 and 10 Vict., c. 101, and other drainage Acts, and these rent charges for the year current at death amounted to £296, 14s. 3d.
R. V. Campbell, for Mrs Irving, maintained (1) that the second bond of provision in favour of Mrs Irving for £3000 was invalid, it being only competent under the power conferred by the entail to charge the lands with one provision of three years' free rent, and, as the first was still unpaid, a second could not coexist along with it; (2) that assuming the bond to be valid, everything was to be deducted in ascertaining the free rental of the estate, which was only a burden on the rents, including the interest paid on the sum of £10,000 and other sums, and the rent charges. The rental could not be increased by the compensation money obtained from the railway company, that being interest, and not rent.
The Solicitor-General ( Clark) and W. A. Brown, for Mrs Irving, on the other hand, maintained the validity of the bond in her favour, both under the entail and as confirmed by the deed of disentail in 1853, and contended that nothing should be deducted in estimating the free rental except public burdens and the interest of “former debts and provisions.”
At advising—
The first of these questions depends mainly on the construction of the clause in the entail conferring the power in virtue of which it was granted. Certain arrangements were made by the party interested in the estate in 1853 to have it disentailed, and the disentail was accordingly carried through. The disposition of 3d August 1853 was the consequence under which the Rev. John Irving's right was converted into a liferent, and the fee conferred in fee simple on the second party to this case. But these intermediate proceedings were not intended to affect, and did not affect, the validity of the bond of provision. On the contrary, its subsistence was expressly provided for both by the agreement and by the disposition, and it is recognised as a subsisting estate “in so far as the said provisions do or may affect the said estate.” It is vain therefore to contend that there was any innovation on the bond affected by the transaction of 1853, and as there was at no time any revocation by the granter, it remained in 1870 quite as valid as it was at its date, and hence the only ground for impugning its validity must be found in the want of power in the granter to create the burden, having regard to the fact that in 1837 the former heir in possession of the estate had executed a bond of provision for £3000, the full extent of three years' free rent, and which bond has all along been, and still is, a subsisting debt.
The argument is, that while the bond was unpaid there could be no exercise of the power to grant provision by any subsequent heir of entail. Was the power conferred on each heir succeeding to the estate, or was it a single power conferred on the heirs of entail as a class, which being once exercised was exhausted until the debt so created was in whole or in part paid off? The words are, I think, such as to show that each heir was to have the power of providing for his younger children.
The decisions referred to of Corbett and of Craigie are important as demonstrating the views entertained by the Court, that unless the contrary is fairly indicated by the words, the entailer will be held to have given this power to all the heirs as they successively come to possess the estate.
The second question regards the reductions to which the gross rental of the estate should be subject to get at the full rental in 1870, the date of the granter's death. The solution of this question will be found by allowing those deductions only which could competently have been made had the entail still subsisted. Hence, whatever burdens on the estate now can be traced to the transaction in 1858, and the disentail of the estate, are not to be taken into view.
The other Judges concurred.
Solicitors:
Page: 370↓
Agents for the Second Party— Maitland & Lyon, W.S.